| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : OSGOOD -v- WHAM [2009] WADC 159 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 4 SEPTEMBER 2009 DELIVERED : 12 OCTOBER 2009 FILE NO/S : CIV 2174 of 2000 BETWEEN : JULIE ANNE OSGOOD Plaintiff
AND
MALCOLM KEITH WHAM
Defendant
Catchwords: Practice - Practice under the Rules of the Supreme Court of Western Australia - Application to amend statement of claim - Whether a cause of action endorsed on the writ not pleaded in the statement of claim deemed abandoned - Rules of the Supreme Court 1971 O 20 r 2 and O 21 r 5(5) - Discretion to allow amendment Legislation: Nil Result: Dismissed
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Representation: Counsel:
Plaintiff : Mr T Lampropoulos
Defendant : Mr J Ley
Solicitors:
Plaintiff : Friedman Lurie Singh & D'Angelo
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431
Jeffrey v Witherow [2006] WASCA 4
Renowden v McMullin (1970) 123 CLR 584
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1 DEPUTY REGISTRAR HARMAN: On 18 August 2000 the court issued the plaintiff’s writ of summons with the following indorsement:
"The Plaintiff's claim against the Defendant in his capacity as the Plaintiff's medical practitioner is for damages for personal injury arising out of the Defendant's failure to diagnose and treat the Plaintiff's eye condition of, inter alia, diabetic cortical cataracts at medical consultations held between September 1994 and about April 1999. The Plaintiff claims for damages …" 2 In her statement of claim the plaintiff specified the consultations that she had with the defendant and pleaded that her loss of sight was attributable to the condition diabetic retinopathy. The cases that she constructed were for breach of duty of care and breach of contract. The common pleas and particulars of breach are provided at par 12 as follows: " … the Defendant: 12.1 failed to examine the Plaintiff properly, or at all, at the consultation on 17 February 1999. Particulars 12.2 failed to diagnose the Plaintiff's condition of diabetic retinopathy. Particulars 12.2.1 The onset of diabetic retinopathy was present in the Plaintiff in a diagnosable state in February 1999. (Page 4)
12.2.2 Failed to test the Plaintiff's condition by a fluorescein angiography and/or argon laser treatment. 12.3 failed to treat the Plaintiff's condition of diabetic retinopathy. Particulars 12.3.1 The Defendant failed to treat the Plaintiff's condition of diabetic retinopathy properly, or at all, and the Plaintiff remained untreated until 14 June 1999 when she consulted Dr Stewart Lockerbie, Ophthalmic Surgeon." 3 The plaintiff now seeks leave to amend the statement of claim according to the terms of a proposed substituted pleading. She proposes to plead the same consultations and cause for her loss of sight but to cast her case of breach of duty at par 19 as the failure to "properly examine, investigate, diagnose, manage and treat the plaintiff's diabetic retinopathy" of which she would give the following particulars: "The defendant … (a) knew or ought to have known by the second review that the plaintiff was at particular risk of developing diabetic retinopathy but failed to detect or diagnose the Condition; (b) knew or ought to have known by the third review that the plaintiff was likely to be suffering from diabetic retinopathy but failed to detect or diagnose the Condition; (c) failed to take an adequate medical history from the plaintiff and the referring doctor at any of the reviews so as to elicit the matters mentioned in paragraph 18 above; (d) failed to properly and carefully examine the plaintiff's eyes at the second, third, fourth, fifth and/or sixth reviews so as to detect the visible signs of the Condition; (e) failed at any time to arrange a fluorescein angiogram to investigate whether the plaintiff had the Condition (despite the plaintiff's long history of diabetes with poor control, other diabetes damage, multiple pregnancies and (Page 5)
reduced visual acuity), particularly in the presence of cataracts, which the defendant knew or should have known might mask the presence of the Condition; (f) failed to refer the plaintiff to a retinal specialist despite the risk factors mentioned in paragraph 18 above (who would have investigated and diagnosed the Condition, with or without fluorescein angiogram and immediately instigated appropriate treatment); (g) failed to detect and diagnose the Condition at the second, third, fourth, fifth and/or sixth reviews; (h) failed to properly investigate whether or not the plaintiff had the Condition at the second, third, fourth, fifth and/or sixth reviews; (i) failed to arrange any treatment for the Condition or underlying diabetic mellitus condition." 4 Thereby the plaintiff seeks to move from the position where her claims related to the consultation of 17 February 1999 to one where claims are constructed about each consultation. The relevant parts of O 21 r 5 are as follows: "5(1) Subject to Order 18, Rules 6, 7 and 8, and the following provisions of this Rule, the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct. (2) Where an application to the Court for leave to make the amendment mentioned in paragraph … (5) is made after any relevant period of limitation current at the date of issue of the writ has expired, the Court may nevertheless grant such leave in circumstances mentioned in that paragraph if it thinks it just to do so. … (5) An amendment may be allowed under paragraph (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause (Page 6)
of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment." 5 In the course of submissions as to the application of r 5(5) the parties referred to decisions of the Full Court of the Supreme Court of Western Australia in Dallas Development Corporation Pty Ltd v Western Australian Land Authority BC 9801620and Jeffrey v Witherow [2006] WASCA 4. Neither case is cited in the other of them and different conclusions are expressed in each as to the impact of the decision of the High Court in Renowden v McMullin (1970) 123 CLR 584. In that case the High Court had considered and applied the proposition that where a plaintiff had not pleaded a case for which relief is claimed in the writ such a claim is deemed to have been abandoned. In Jeffrey (supra) the Court distinguished Renowden (supra) on the basis that O 20 r 2 (2) had not been a feature of the context before the High Court. The relevant parts of r 2 are as follows: 6 In Jeffrey the court found that O 20 r 2 would allow for a plaintiff to plead a case not previously put but within the scope of the writ after any relevant period of limitation current at the date of the issue of the writ had expired. It concluded that contrary to the respondent's contention in that case it was not necessary to consider the application of O21 r 5(5). 7 In making his submissions on the reasoning in those cases the defendant sought to distinguish the context presented to me from that before the Court in Jeffrey. He promoted the case that that before me was more akin to that before the Court in Dallas Development Corporation Pty Ltd (supra). 8 Whatever the proximate feature may have been, my reading of Dallas Development Corporation Pty Ltd is that the court had simply (Page 7)
recognised circumstances in which the reasoning Renowden would operate and went on to consider whether it was appropriate for it to review an exercise of discretion. The ratio of the case speaks to the grounds for review of an exercise of discretion. 9 The defendant also sought to draw upon features of the application before the Supreme Court in Dye v Griffin Coal Mining Co Pty Ltd (1998) 19 WAR 431, which were portrayed as being similar to those before me. In that case the plaintiff had pleaded a case for damages as the result of events on a particular day. In the application the subject of appeal he unsuccessfully sought to add a case which would have drawn into consideration a course of conduct over an extended period; in particular that over the period the impugned conduct had precipitated the same injury arising from the same cause as the existing case, namely driving the same vehicle over the same roads in the course of the same employment. 10 At the outset I note that the datum upon which the reasoning of the court turns was the case specified in the statement of claim and not that in the writ however the writ was in the same limited terms as the pleading. In my opinion the cases that the plaintiff now seeks to put can be distinguished from the additional case sought to be put in Dye (supra). Although perhaps in common with Dye, the proposed pleading would suggest the development of a condition, the cases that the plaintiff now seeks to put are what amount to a series of snapshots over the course of development of the condition rather than a single case that would encapsulate the manifestation of the condition. Each case sought to be put would be distinct and to that extent similar in nature to that presently put. The significant difference between the context in Dye and that before me is that the writ was limited to the date the subject of the pleading. Ultimately the appeal was determined on the basis that the proposed amendments did not come within the scope of O 21 r 5(5). 11 Although the amendments before the court in Jeffrey only enhanced the scope of pleaded cases relating to particular events and not add cases relating to other events, there is no reason to confine the reasoning for the result in Jeffrey. Once it is appreciated that the relevant events in Jeffrey would equate to consultations in this case, there is no real difference between the writs. 12 In my opinion broadly speaking the cases now sought to be put fall squarely within the scope of the writ. They emerge from consultations held between September 1994 and April 1999. Accordingly in (Page 8)
determining the application reference is not required to be had to O 21 r 5. The exception is the case put in relation to what the plaintiff characterises as the first review, the first consultation. The date of the consultation is nowhere better specified than by the year 1994. I am cognisant of authority to the effect that it is not desirable for a court to seek to determine factual issues that go to limitation defences in interlocutory applications. I understand that such authority would sit comfortably in circumstances where the party alleging the particular case did not carry the onus of persuasion in the application before the court. In this instance it is the party making the allegation who carries the onus and there is no evidence upon which I could make a determination as to whether or not that consultation was within the scope of the writ. To the extent that the plaintiff seeks leave with respect to the cases founded on that consultation, in my opinion the application ought to be dismissed. 13 As to the balance of the cases that the plaintiff seeks to put it is for her to discharge the burden of persuasion that to grant leave would be just. Because of the timing of the application the primary considerations would have a common focus: whether by now allowing the plaintiff to put either the proposed additional pleadings that relate to the existing case or to the proposed additional cases would be likely to cause substantial injustice. 14 The evidence in support of the application is provided by the plaintiff's solicitor's affidavit dated 30 June 2009. It canvasses the history of the action and the process by which the proposed pleading was formulated. The force of the plaintiff's case in the application is expressed in the following paragraphs of that affidavit: "27. The pleadings relate to a complex medical condition, the particulars of which are beyond that of the plaintiff's knowledge. 28. The plaintiff seeks to substitute her statement of claim because she has received expert medical opinion since drafting her initial pleadings that has revealed further allegations of fact and better clarifies the nature and extent of the issues in dispute between the parties. 29. After preparing her initial pleadings, the defendant supplied expert medical reports which suggested that the plaintiff's condition was of a very fast and aggressive type of diabetic retinopathy (as described by Dr Beaumont in the Lancet in 1972), and that: (Page 9)
… 32. It was then necessary for the plaintiff to obtain the fluorescein angiographies from 1999 and seek medical opinion in response. 33. The plaintiff obtained: … 36. I believe the plaintiff will be severely prejudiced if she is not given leave to substitute her statement of claim to include the relevant allegations arising as a consequence of the further and better evidence." 15 I have no difficulty with the content of pars 27 to 33. I observe that the date of the provision of the defendant's expert's opinion is not provided. I also note that broadly speaking the proposed particulars of alleged negligence appear to draw directly upon the content of Dr Beaumont's report whereas the existing cases appear to draw upon the earlier précis of his proposed evidence. It is evident from the report that his particular opinions are founded on observations that he makes of a fluorescein angiographic study comprising three strips of six photographic images that he identifies by reference to a label bearing the plaintiffs name dated 25.6.99. I do not know when they became available to the plaintiff. 16 It is difficult to assess the impact of the proposition in par 28 that opinion "has revealed further allegations of fact and better clarifies the nature and extent of the issues in dispute between the parties". In context it is appropriate to consider that the expression "issues in dispute" would relate to the pleaded cases of the parties. As for the report exposing further allegations of fact, most of its content appears to be opinion. And (Page 10)
if at that point it is appropriate to reflect on the prospect that the deponent had intended to refer to allegations of material fact, I would simply observe that by want of specificity, at no useful point does the evidence assist the plaintiff's case. As for the broad proposition that some greater clarity would be brought to the litigation, I would observe that upon the close of pleadings the task before each party could not have been made clearer. Ultimately the content of par 28 does not assist the plaintiff. 17 Perhaps it is expecting too much to be better informed as to the severe prejudice to which the plaintiff would be exposed in taking her pleaded cases to trial. I only make the observation because there seems to be little more than par 36 that could justify leave being granted. Without more detail I could not make any proper assessment of its worth. 18 To the extent that by putting the case of the defendant's failure to investigate the plaintiff’s diabetic retinopathy the plaintiff would seek to enhance or refine the case presently made, in my opinion it is also not clear what advance the proposal would make on the cases put at par 12.1. 19 At par 9 of the minute the plaintiff proposes allegations as to what was conveyed between the parties upon which the proposed allegation of failure to investigate and those put at pars 12.1 and 12.2 may draw. The want of any evidence in support of those allegations to one side, it is appropriate to observe that 10 years have passed since the alleged conversation and almost 9 since the statement of claim was filed. 20 In the course of the submissions the defendant submitted that for the plaintiff to put the allegations proposed at par 9 of the minute would be prejudicial. There was no evidence to support that submission but I was invited to draw an inference. Although the onus of persuasion is on the plaintiff the defendant carries an onus to support any submission that he cares to make. Where a party carries an onus and chooses not to give any evidence or any evidence of its inability to do so it is appropriate to carefully consider whether the court should assist. I do not have any difficulty with the proposition that independent of any notes it is unlikely that the defendant would have any recollection and to that extent he would be prejudiced but in the absence of evidence I do not consider that it is appropriate to draw the particular inference. 21 Be that as it may, assessing the bigger picture, it is the plaintiff who carries the onus in the application. Although I might readily accept that it would be difficult for her to give comprehensive or useful evidence that would bear upon the issue of prejudice I will simply record that the (Page 11)
primary issue in determining the application, its timing, selects itself. Whilst I have no difficulty with the proposition that a party ought to be permitted to plead the case it seeks to put to trial, the opportunity for the plaintiff to do so without leave expired long ago. Not only is the case sought to be put not clear, unless I was persuaded that more likely than not the defendant would not be prejudiced there would be no justification for granting leave to so amend. In my opinion the plaintiff has travelled no distance down the path of persuasion. 22 Apart from there being a similar lack of clarity presented by the proposed allegation of failure to manage the condition, a particular difficulty that I have with the alternative case put at par 19(i) and promoted at par 20 in relation to the underlying condition is that it appears to be beyond the scope of the duty pleaded at par 5(d). 23 To the extent that she seeks to bring cases relating to the balance of the consultations the plaintiff does not propose to plead material other than that which I consider would more likely than not to have been the subject of notation by the defendant. The action having commenced 16 months after the plaintiff’s last consultation it is unlikely that any such notes would have been destroyed. In my opinion in relation to those cases the assessment in which I have just engaged relating to the existing cases should be adjusted in favour of the plaintiff as there would be less justification for the proposition that the defendant would be likely to be prejudiced. Be that as it may, the events put in question by the proposed pleading occurred a considerable time ago and it remains the case that the critical consideration is that the onus is on the plaintiff. 24 It is at least implicit that the plaintiff would seek to bring cases that are consistent with the report of Dr Beaumont. He proposes that the signs of the plaintiff's diabetic retinopathy condition had developed over a period of time and would have been evident prior to the February 1999 consultation. The plaintiff submitted that even on the cases presently put the content of the report would be relevant. To the extent that that observation would assist the plaintiff, in my opinion it is wide of the mark. The critical point is that on the cases put by the plaintiff the court would not be required to make the determinations called for by the proposed pleadings. 25 In my opinion by any measure including that provided by the current pleading, the evidence that would bear upon the determinations that would be required on the proposed new cases would be substantially greater, so too the number of determinations. In considering whether I ought to be (Page 12)
satisfied that allowing the plaintiff to put the proposed cases would not be likely to cause substantial injustice, I consider that she has done little more than justify the terms of the proposed pleading. 26 Having reached the conclusion that the plaintiff has not discharged the onus there seems to me to be little point in considering the balance of the issues presented by the defendant in relation to the formulation of the proposed allegations. 27 It follows that at each point the plaintiff has not persuaded me that she should have leave to amend in the terms of the minute of proposed substituted statement of claim.
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